Montana Department of Social and Rehabilitation Services, DAB No. 1024 (1989)

DEPARTMENTAL APPEALS BOARD
Department of Health and Human Services

SUBJECT: Montana Department of Social and Rehabilitation Services
DATE: March 14, 1989
Docket No. 88-23 Decision No. 1024

DECISION

The Montana Department of Social and Rehabilitation Services (State)
appealed a determination by the Health Care Financing Administration
(HCFA, Agency) disallowing $315,908 in federal financial participation
claimed by the State under Title XIX of the Social Security Act
(Medicaid) for the period July 1, 1986 through September 30, 1987. The
State claimed federal financial participation (FFP) for salaries of
certain State employees at an enhanced FFP rate of 75% for compensation
of skilled professional medical personnel (SPMP). The Agency disallowed
the portion of the State's claim which exceeded the 50% rate generally
applicable to administrative costs for the Medicaid program. The Agency
determined that 205 social worker and long-term care specialist
positions for which the State claimed 75% FFP did not qualify as SPMP.

This decision concerns the educational and functional limitations on the
availability of 75% FFP for SPMP set forth at 42 C.F.R. 432.50(d)(1)(ii)
and (iii)(1986). These limitations specify that SPMP have "professional
education and training in the field of medical care or appropriate
medical practice" and that SPMP have position "duties and
responsibilities that require those professional medical knowledge and
skills." The regulations provide that all applicable limitations must
be met for 75% FFP to be available. As we explain below, our
determinations on the SPMP status of the 205 disputed positions are as
follows:

o We reverse the disallowance for Position No. 00473 where the
Agency found that the incumbent met the requirements of the
educational limitation and we found that the position met the
functional limitation;

o We sustain the disallowance for 178 positions where we
found that the position incumbents did not meet the
educational limitation; and

o We remand 26 positions for further consideration by the
Agency of whether these positions meet the educational and/or
functional limitations. The parties agreed during Board
proceedings to a remand for 10 of these positions; remand of
14 positions results from the Board's determination, discussed
below, that these particular position incumbents (all social
workers having a Masters in social work degree) would meet the
educational requirement if the State can show that their academic
work included health care and/or medical applications; and remand
of two positions, Position Nos. 00735 and 00835, results from the
Board's determination that these positions possibly included
qualifying functions.

I. Overview of this Case

The regulations require that in order to qualify for SPMP status, an
employee must meet all the applicable limiting criteria. These include
an education and training requirement and a functional requirement.
This appeal concerns, in general, the SPMP status of medical social
workers, since the State asserted that all 205 positions in dispute
involved medical social work functions. During the course of the Board
proceedings, however, the central issue to be resolved in this case
became what constitutes the requisite education and training necessary
to qualify a medical social worker as a SPMP.

The Board previously issued a draft decision in this appeal and proposed
to find that while the functions of a medical social worker are
appropriately considered SPMP functions, a degree in social work per se
does not constitute "professional education and training" under 42
C.F.R. 432.50(d)(1)(ii). We proposed to find, therefore, that employees
with a degree in social work or a related area do not meet the
educational requirement for SPMP status. As a consequence, we
tentatively concluded that only seven of the positions in dispute met
the educational limitation and, of these seven, only one met the
functional limitation. Therefore, we tentatively found that only one
position of the 205 positions in dispute met both the educational and
functional limitations.

The State of Utah subsequently submitted a comprehensive brief
addressing the Board's tentative finding concerning the requisite
education and training to qualify for SPMP status as a medical social
worker. Utah traced the history of the field of medical social work,
and illustrated how this discipline is an integral part of the health
delivery system. Appellant's Supplemental Submission (Docket No.
88-90). This brief also provided authoritative information concerning
what is considered the appropriate education and training necessary to
perform medical social work functions. The Agency responded to this
brief, but did not dispute any of the authorities cited by Utah. Based
on the information in the record, including the information provided by
Utah's supplemental brief, we have concluded that our preliminary
analysis on this issue must change.

While the Agency accepted our draft finding that the functions of a
medical social worker are SPMP functions, it still contended that those
individuals whose education and training is specifically in the social
work field do not have the requisite education and training to be SPMP.
As we explain below, we find that social work in the health care context
is a medically related profession. This conclusion derives from the
history of the development of medical social work as an integral part of
this country's health care delivery system. Thus, we cannot deny,
across the board, SPMP status to all those whose education and training
is in that field. A two-year graduate degree in social work from an
accredited college or university is the accepted education and training
for medical social work. The question is how to square this undisputed
historical development with HCFA's special requirement that, to qualify
for the higher rate of federal funding, there has to be specific
education and training in medical care. We conclude below that an
individual so qualified whose education (including training received as
part of academic work) has specifically included health care and/or
medical applications meets the regulatory requirements of 42 C.F.R.
432.50(d)(1)(ii). Consequently, the Agency is obliged under its
regulations to recognize at least individuals with those qualifications
as having the requisite education and training to be SPMP. Having
decided that a graduate social work degree accompanied by academic work
in medical subjects qualifies under the Agency's regulations, we
emphasize that we are not deciding here what combinations of academic
degrees and clinical work qualify or do not qualify. This decision does
not limit HCFA's discretion to deal flexibly with the varied
circumstances which may exist.

II. Applicable Law, Regulations, and Guidelines

Section 1903(a)(2) of the Social Security Act (Act) provides for FFP at
the enhanced rate of 75% for states' Medicaid costs which are properly
attributable to the compensation of SPMP. Costs for state personnel who
do not meet the SPMP requirements are reimbursed at the 50% rate
generally applicable to FFP claims for costs of administration. Section
1903(a)(7).

Agency implementing regulations, 42 C.F.R. 432.50(b)(1) (1986), provide
75% FFP for skilled professional medical personnel. Section
432.50(b)(6) implements the 50% matching provision generally applicable
to FFP claims for costs of administration.

.The term "skilled professional medical personnel," which is not defined
in the Act, is defined at 42 C.F.R. 432.2 as:

. . . physicians, dentists, nurses, and other specialized personnel
who have professional education and training in the field of
medical care or appropriate medical practice and who are in an
employer-employee relationship with the Medicaid agency. It does
not include other nonmedical health professionals such as public
administrators, medical analysts, lobbyists, senior managers or
administrators of public assistance programs or the Medicaid
program.

Section 432.50(d) of 42 C.F.R. states the following limitations on the
availability of 75% FFP:

(1) Medicaid agency personnel and staff. The rate of 75 percent
FFP is available for skilled professional medical personnel and
directly supporting staff of the Medicaid agency if the following
criteria, as applicable, are met:

* * * *

(ii) The skilled professional medical personnel have professional
education and training in the field of medical care or appropriate
medical practice. "Professional education and training" means the
completion of a 2-year or longer program leading to an academic
degree or certificate in a medically related profession. This is
demonstrated by possession of a medical license, certificate, or
other document issued by a recognized National or State medical
licensure or certifying organization or a degree in a medical field
issued by a college or university certified by a professional
medical organization. Experience in the administration, direction,
or implementation of the Medicaid program is not considered the
equivalent of professional training in a field of medical care;
[and]

(iii) The skilled professional medical personnel are in positions
that have duties and responsibilities that require those
professional medical knowledge and skills.

* * * *

The preamble to the final regulation provides further explanation
concerning the Agency's definition of SPMP. The preamble states that:

the law [section 1903(a)(2) of the Act] did not intend to provide
75 percent FFP merely to any staff person who has qualifying
medical education and training and experience, without regard to
his actual responsibilities. Rather, the function performed by the
skilled professional medical personnel must be one that requires
that level of medical expertise in order to be performed
effectively. Consequently, 75 percent FFP is only available for
those positions that require professional medical knowledge and
skills, as evidenced by position descriptions, job announcements,
or job classifications.

50 Fed. Reg. 46652, at 46656 (November 12, 1985).

The preamble specifies examples of the functions that would meet the
basic criteria referred to as follows:

o Acting as a liaison on the medical aspects of the program
with providers of services and other agencies that provide
medical care.

o Furnishing expert medical opinions for the adjudication of
administrative appeals.

o Reviewing complex physician billings.

o Providing technical assistance and drug abuse screening on
pharmacy billings.

o Participating in medical review or independent professional
review team activities.

o Assessing the necessity for and the adequacy of medical care
and services provided, as in utilization review.

o Assessing, through case management activities, the necessity
for and adequacy of medical care and services required by
individual recipients.

50 Fed. Reg. 46656.

III. Background

The disallowance is based on findings made in a HCFA financial
management review of the State's SPMP expenditures. Appellant's Appeal
File, Ex. 1. The Agency determined that the State claimed FFP at the
75% rate for 195 social workers and 10 long-term care specialists who
did not qualify as SPMP. (It was undisputed that the State claimed 75%
FFP only for the portion of these employees' time that was properly
allocated to Title XIX.) The Agency reviewed the records for all 205
State employees who were incumbents of the positions involved in this
appeal. The auditors' workpapers listed each of the employees by name,
and indicated their job title, major course of study, undergraduate and
graduate degrees (if any), and the name of the college or university
that granted the employee's degree. Respondent's Appeal File, Ex. 2.

The Agency reviewers referenced 42 C.F.R. 432.50(d)(1)(ii) and
determined that, except for three of the employees, the incumbents did
not qualify as SPMP because they did not have the required professional
education and training in a medically related profession.

The Agency reviewers also determined that, although three social workers
met the educational requirement for SPMP status because they had degrees
in nursing, their social worker positions did not require use of their
professional medical knowledge and skills. Therefore, the Agency
reviewers concluded that these three nurses could not qualify for 75%
FFP. Based on the financial management review findings, HCFA disallowed
the difference between the 75% rate claimed for all 205 employees and
the 50% rate generally applicable to administrative costs for the
Medicaid program.

IV. Parties' Arguments

A. State's Arguments

The State pointed out that the legislative history of the statutory
provisions for SPMP specifically included "medical social work
personnel" as an example of the type of Medicaid agency staff which
would be considered SPMP. See Report of the Committee on Finance to
Accompany H.R. 6675, S.Rep. No. 89-404, 89th Cong., 1st Sess., Pt. 1, p.
83 (1965). The State argued essentially that the amended SPMP
regulations and the interpretation of those regulations by HCFA are
contrary to congressional intent because they preclude 75% FFP for
"medical social workers." The State contended that while the
regulations had changed, the statute had not.

The State contended that the specific functions performed by the 195
social workers and the 10 long-term care specialists are equivalent to
the functions of a "medical social worker," as that position is defined
in the Dictionary of Occupational Titles, section 195.107-030. The
State argued that under the new regulations it would be impossible to
obtain reimbursement for these social workers and long-term care
specialists even though these positions qualified as SPMP under the
previous regulations, because the references cited by HCFA as authority
for what degree programs might be considered appropriate health-related
education do not include social work as a health-related degree. The
State, however, reasoned that since there is no degree in "medical
social work," a degree in social work should be considered the
appropriate medical education and training necessary under the
requirements of the regulation. The State did not make any arguments
specific to the employees HCFA found met the education requirement of 42
C.F.R. 432.50(d)(1)(ii), other than that these employees, as well as the
other employees, performed functions requiring the exercise of
professional medical knowledge and skills, as specified by 42 C.F.R.
432.50(d)(1)(iii).

In response to the draft decision, the State urged the Board to give
greater weight to the affidavits concerning the functions of various
positions than to the three position descriptions submitted by HCFA.
The State also sought further consideration by the Agency of the 10
positions where the parties did agree to a remand.

B. Agency's Arguments

HCFA addressed the State's substantive argument regarding the specific
enumeration of medical social work personnel as SPMP in the legislative
history and the deletion of the reference to these positions in the
amended regulations. HCFA denied that the regulatory change was
contrary to the intent of Congress as reflected in the legislative
history. The Agency argued that it did not interpret the new
regulations to preclude all "medical social workers" from SPMP status.
In fact, the Agency accepted the Board's draft finding that the
functions of a medical social worker, as that position is defined in the
Dictionary of Occupational Titles, are those of an SPMP.

The Agency stated in its opening brief that the regulations require
that, before the costs of their compensation and training can qualify
for enhanced FFP as SPMP, the employees in those positions must have
education and training in a medically related field, and the effective
performance of the duties and responsibilities of their positions must
actually require such education and training. HCFA stated:

So then, a medical social worker who has education and training in
a medically-related field, and whose main duties and
responsibilities include functions such as those listed at pp. 4-5
above [the functions described in the preamble which are set out in
section II. above], will still properly be considered SPMP for FFP
purposes.

Respondent's Brief, p. 14.

HCFA asserted that in order to meet the requirements for 75%
reimbursement as SPMP these employees must first have the requisite
educational background. The Agency initially asserted that a degree in
social work cannot be viewed as appropriate medical education for the
work performed by a medical social worker/SPMP and pointed out that not
all of the persons in these positions even had degrees in social work.
Respondent's Appeal File, Ex. 2. HCFA argued that only five of the
employees in dispute had what it considered the professional education
and training in the field of medical care or appropriate medical
practice required by 42 C.F.R. 432.50(d)(1)(ii). HCFA then argued that
the duties and responsibilities listed on the employee position
descriptions in the record for those five employees did not meet any of
the functions listed in the preamble as examples of the functions which
would meet the criteria. The Agency thus argued that medical expertise
was not required for the performance of these positions.

The Agency also noted that all the social worker position descriptions
in the record required essentially the same duties and responsibilities.
The Agency argued that because most of the incumbents of these positions
during the period in dispute did not have any education or training in a
medically related field, it could be inferred that education in a
medically related field was not necessary for the effective performance
of the duties and responsibilities of any of the social worker positions
in dispute.

The Agency's principal arguments after issuance of the draft decision
concerned the Board's proposed finding that the FFP limitations at 42
C.F.R. 435.50(d)(1) were separate and independent requirements. The
Agency urged us to find a link between the functional limitation and the
educational limitation--meaning that while the education limitation is
unique to the position incumbent, the incumbent must use that education
and training to perform their job functions. The Agency also argued
that the Board's proposed finding that a degree in social work would not
qualify as the requisite education and training for an SPMP position was
the proper application of the new regulations.

V. Analysis

The question of SPMP status under the revised regulations is before us
as a case of first impression. The Agency stated in the preamble that
its object in amending the regulations was to avoid the diversity in
interpreting and applying its previous policy which had resulted in
different matching rates for the same types of staff, and that it
expected this to result in significant program savings on the federal
level ($15.8 million in the first fiscal year the regulations were
effective). 50 Fed. Reg. at 46655 and 46662 (1986). The amendments
were intended to substantially narrow the availability of FFP for SPMP
positions. Oregon Dept. of Human Resources, DAB No. 729 (1986), pp.
9-10. Although the State objected to applying the revised regulations
to exclude medical social workers from SPMP status, the State did not
dispute that the Agency could, in general, appropriately narrow the
scope of those positions eligible for 75% FFP as SPMP.

A. Medical Social Workers as SPMP

Medical social work is a distinct field of social work practice which is
considered to be an integral part of our health care delivery system.
As explained in the Utah brief, this discipline developed during the
course of this century out of a recognition that it was necessary to
treat social factors as an aspect of health and illness care. Utah
explained that by the 1980's there were 45,000 social workers employed
in various sectors of the health system, with approximately 4,000 social
workers employed by the Veterans Administration, the largest single
employer of medical social workers. Appellant's Supplemental Submission
(Docket No. 88-90), pp. 3 and 10. Approximately 60-65% of the graduates
of accredited social work programs work in the health care field. Id.
at p. 23. Utah's submission examined the history of both the field of
medical social work and of its professional organization, the National
Association of Social Workers; Utah further examined how the education
and training requirements for medical social work have evolved
throughout this century.

The importance of the role of the medical social worker in health care
is illustrated by the following:

. . . The ability to diagnose the social dimension differentially
should be taken as seriously as the biologic and the psychologic
dimensions of patient care. Often the social element can be either
directly or indirectly as life threatening as the physical and/or
psychologic illness.

Id. at pp. 19 and 20, quoting from Stephen R. Wallace, Guide for
Clinical Social Work in Health Care, p. 1 (1984). We are persuaded then
that the practice and function of medical social work is properly
considered to fall within the field of medical care and that medical
social work is a medically related profession.

The Agency stated that the proper application of the revised regulations
does not preclude reimbursement for medical social workers as SPMP, as
long as the incumbent of the position meets the educational requirement
of 42 C.F.R. 432.50(d)(1)(ii) and the job requires the performance of
functions such as those set forth in the preamble to the regulation. We
next consider what are the functions of a medical social worker.

"Medical social worker" is defined in the Dictionary of Occupational
Titles, section 195.107-030, as follows:

Aids patients and their families with personal and environmental
difficulties which predispose illness or interfere with obtaining
maximum benefits from medical care. Works in close collaboration
with medical doctor and other members of health team to further
their understanding of significant social and emotional factors
underlying patient's health problem. Helps patient and family
through individual or group conference, to understand, accept, and
follow medical recommendations and provides service planned to
restore patient to optimum social and health adjustment within
patient's capacity. Utilizes resources, such as family and
community agencies, to assist patient to resume life in community
or to learn to live within patient's disability. Participates in
planning for improving health services by interpreting social
factors pertinent to development of program. Provides general
direction and supervision to workers engaged in clinic home service
program activities. Employed in general hospitals, clinics,
rehabilitation centers, or related health programs. May be
employed as consultant in other agencies. Usually required to have
knowledge and skill in casework methods acquired through degree
program at school of social work.

Appellant's Appeal File, Ex. 11.

.The Agency did not dispute that the specific duties listed in the
Dictionary's definition for "medical social worker" would qualify as
skilled professional medical functions in the context of the
administration of the Medicaid program. Indeed, we find these duties to
encompass generally what is covered in the preamble by reference to
"assessing through case management activities, the necessity for and the
adequacy of medical care and services required by individual
recipients." In light of the reference to medical social worker as a
skilled professional medical position in the legislative history (see p.
8 above), and given the lack of any other job-specific functional
definition for a medical social worker, we find the functions of a
medical social worker position as stated in the Dictionary, performed in
the context of the administration of the Medicaid program, to constitute
the job duties of an SPMP. Therefore, we affirm our draft conclusion
that anyone who functions as a medical social worker and has the
requisite education and training would qualify for 75% FFP.

B. Professional Education and Training Necessary for SPMP Status

The next question before us then is what "professional education and
training" is necessary to meet the educational limitation of the
regulations and to perform medical social worker functions. The
regulation requires professional education and training in the field of
medical care or appropriate medical practice and further defines
"professional education and training" as the "completion of a 2-year or
longer program leading to an academic degree or certificate in a
medically related profession." 42 C.F.R. 432.50(d)(1)(ii).

The Agency accepted the general conclusion that medical social workers
with the requisite education and training qualified for 75% FFP as SPMP.
In this regard, the Board had stated in its draft decision on page 11 a
tentative conclusion that:

A degree in "social work" does not constitute "professional
education and training" because it is not a field of "medical
care or practice." 42 C.F.R. 432.50(d)(1)(ii). Moreover, a
degree in social work, even from a university with an
accredited social work degree program, is not a "degree in a
medical field issued by a college or university certified by a
professional medical organization." 42 C.F.R.
432.50(d)(1)(ii). Thus, we propose to find that a degree in
social work is not "professional education and training" under
the regulations. Therefore, those employees with either a
degree in social work or no degree but some course work in
social work or related areas do not meet the educational
requirement of the regulation for SPMP status.

The Board then found that this conclusion did not preclude a medical
social worker with a degree in nursing, physical therapy, or some other
medically related field from meeting the educational requirement for
SPMP status. Draft Decision, pp. 11-12.

After considering the comments on the draft decision, we determined that
the Board's tentative conclusion was unsound in failing to recognize any
social work education and training as qualifying. Given the record as
now developed concerning the special functions and status in the medical
arena of medical social workers, and in the absence of specific Agency
limitations on the education and training qualification of such workers,
the record does not support a limitation which would require education
and training in some other medically related discipline as a
prerequisite to SPMP status in the medical social work field.

The limitation stated at 42 C.F.R. 432.50(d)(1)(ii) requires
"professional education and training in the field of medical care or
appropriate medical practice." The regulation further provides that
this "means the completion of a two-year or longer program leading to an
academic degree or certificate in a medically related profession"
(emphasis added). It is undisputed that a Masters in social work degree
from a two-year graduate program at an accredited college or university
would currently qualify an individual to work as a medical social worker
in both the private and government sectors. However, there is no
evidence in the record that the Masters of Social Work curriculum
necessarily requires or always includes health related work. Therefore,
we cannot conclude that every Masters in social work would meet the
educational limitation in the regulation. On the other hand, some
individuals in a Masters' program may have included in their degree
program such health related work. We conclude that an individual would
qualify under the regulatory requirements of 42 C.F.R. 432.50(d)(1)(ii)
if their education (including training received as part of academic
work) specifically included the health care and/or medical applications
of the social work field.

With regard to the Agency's arguments against this result, as stated in
its response to the Appellant's Supplemental Submission (Docket No.
88-90), we note that:

o This result does not place "central importance on the job
title." Any medical social worker position must also meet the
functional requirement of 42 C.F.R. 432.50(d)(1)(iii).

o Our determination does not involve the application of some
"lesser standard" of what is medically related than that intended
by the regulation. The phrase "medically related profession" at 42
C.F.R. 432.50(d)(1)(ii), used to describe qualifying education and
training, underscores that professions other than those involved in
providing hands-on diagnosis and treatment can be properly regarded
as within the field of medical care.

o The Agency argued that there is no evidence that "a social work
curriculum provides the student with any 'professional medical
knowledge and skills'." The record contains a thorough discussion
of the evolving educational and field experience requirements for
medical social work. See Appellant's Supplemental Brief (Docket
No. 88-90), pp. 7-14 and Ex. 1. More important, we are not
entirely disagreeing since we are finding that actual medical
content must be shown in addition to social work training per se.
There is no basis for us to conclude that individuals having a
Masters degree in social work whose education and training
included the health care and/or medical applications of social work
are not equipped with the "professional medical knowledge and
skills" to function as SPMP in the medical social work field in the
administration of the Medicaid program. This conclusion follows
from the unusual position of the social work discipline within the
health care field where case-work techniques are used to further
the successful diagnosis and treatment of medical problems.

o The Agency also argued that "under the regulations,
the on-the-job training and work experience that
apparently is used to put the 'medical' in the phrase
"medical social work" cannot be substituted for meeting
the educational requirements." The regulation provides
that "[e]xperience in the administration, direction, or
implementation of the Medicaid program is not considered
the equivalent of professional training in a field of
medical care." The preamble, moreover, stated that the
education and training regulation encompassed a general
intent to also exclude "an individual's on-the-job
training and work experience gained in some other job
outside the State agency as qualification for" SPMP
status. 50 Fed. Reg. 46660 (November 12, 1985). This
language would certainly preclude treating work
experience or on-the-job training in the Medicaid
program or elsewhere as the equivalent or substitute for
a two-year or longer program. However, our conclusion
here is not based upon treating work experience as the
equivalent of a two-year program..C.Who Meets the
Educational Requirement

With regard to the 10 long-term care specialist positions, Respondent's
Exhibit 2 shows that the position incumbents have undergraduate degrees
in a variety of disciplines and one has a Masters degree in personal
guidance. The Board found initially in the draft decision that none of
these incumbents had the required education and training to qualify as
SPMP, and the State did not pursue this determination in commenting on
the draft decision. Therefore, we conclude that none of these 10
long-term care specialists qualify as SPMP because the incumbents do not
meet the educational limitation at 42 C.F.R. 432.50(d)(i)(ii).

As recognized by the Agency, a "medical social worker" who has completed
a two-year or longer program leading to a degree or certificate in a
field such as nursing or physical therapy meets the educational
requirement for SPMP status. The Agency agreed that there were seven
social workers (this includes two social workers identified by the
Board), some with undergraduate degrees in nursing and physical therapy,
and some with Masters degrees in rehabilitation counseling, who
satisfied the educational requirement. Below in section IV.D we examine
the functional limitation for three of these positions where we have
specific functional information in the record. The Agency agreed to
review the functional limitation on remand for the four positions for
which the Board did not have functional information.

In addition, there are 20 social workers who may meet the educational
requirement depending on whether their degrees are from an accredited
two-year program and/or whether they have any required State license or
certificate. During Board proceedings the Agency agreed to review six
employees on remand. One has a Masters degree in rehabilitation for the
blind and five have undergraduate degrees in rehabilitation counseling.
The Board identified 14 other social workers who had Masters degrees in
social work; because of our conclusions in section IV.D above, the
parties need to examine on remand whether these 14 position incumbents
have their degrees from an accredited two-year program and meet the
requirements for specific education and training in the health care
and/or medical applications of social work.

In summary, (1) none of the 10 long-term care specialists meet the
educational requirement, (2) out of the 195 social workers, 168 did not
meet the educational requirement, seven meet the educational
requirement, and 20 may satisfy the educational requirement. Thus, 10
long-term care specialists and 168 social workers, for a total of 178
position incumbents, did not meet the educational limitation and could
not qualify for SPMP status (as discussed above).

There are then 27 positions where the educational limitation is either
met or may be met. Our determinations concerning the functional
limitation made in section IV.D below directly pertain to only three of
the positions where the Agency agreed the educational limitation was
met, but these determinations apply indirectly to the functional status
of the remaining 24 positions.

D. Whether Three Position Incumbents who met the Educational
Requirement are in Positions Which Meet the Functional Requirement

While the Agency agreed that seven social workers met the educational
requirement of the regulation, the record contains position descriptions
and employee evaluations only for three of these employees, Positions
No. 00473, 00735, and 00835. This information was submitted by HCFA.
The State submitted affidavits explaining the functions performed by the
State's social workers.

.The State pointed out that the social workers generally worked in one
of two areas: assisting developmentally disabled adults and children or
providing child protective services. (For the seven social workers, the
record shows only that one social worker, Position No. 00473, worked in
assisting developmentally disabled adults and children, and that two,
Positions Nos. 00735 and 00835, worked in the child protective services
area. The record does not show in which of the two areas the other four
social workers worked.)

The State argued that the affidavits describing the functions of these
social workers (State's Exs. 6, 8, 15 and 16) should be given greater
weight than the position descriptions and employee evaluations, because
the affidavits more accurately reflected the Medicaid-related work
performed by the State employees. Appellant's Response to the Draft
Decision. The State said the reason for this was that since only a
small proportion of each worker's time (in some instances the State
claimed only 5%) is spent on Medicaid-related work, very little, if any,
reference to these activities would be mentioned in the position
description. We examined the record before us in its entirety in making
our determinations and found no conflict between the position
descriptions and the affidavits.

As we found in the draft decision, certain aspects of the Board's
previous approach in examining whether a position's functions are
medical, such as reviewing position descriptions, organizational
statements, or other information pertaining to a particular position,
are still appropriate under the revised regulations. See, e.g., Oregon,
supra. This type of documentation is useful in making a determination
as to whether the position's functions are administratively non-routine
and peculiar to medical programs.

We consider in this section whether the functional limitation was met
for Position Nos. 00473, 00735, and 00835, where HCFA agreed the
educational requirement was met and where we have specific evidence
relevant to the particular positions. The Agency can apply our findings
for these three positions, as appropriate, in its consideration on
remand to the 24 positions where the educational limitation was either
met or possibly met (see section IV.C above).

1. Position No. 00473

The position description and employee performance evaluation for
Position No. 00473 describe the following kinds of functions:

o Provides services to aged, disabled adults and
developmentally disabled adults and children which are directed
toward assisting the individual maintain independence, and
increase self-sufficiency.

o Provides counseling services to children and parental
figures.

o Provides case management services to adults and children
receiving developmentally disabled services which includes
coordinating, gathering and/or preparing all necessary
information, such as social summaries, psychological and medical
reports required for service provision. Schedules, attends and
conducts planning meetings as necessary.

o Has weekly contacts with medical practitioners, Mental
Health Staff, Rehabilitation Counselors, Developmentally
Disabled Staff and service providers and school staff to
develop, implement and monitor comprehensive, appropriate
service plans.

o Obtains information to arrive at assessment of problems and
develops case plans with realistic and appropriate services or
determines that needed services are not available through the
Agency.

o Develops a case plan jointly with each client which states
the problem and services or resources to be used for resolution.
Takes client's capacities into consideration; identifies
resources which are appropriate.

o Works cooperatively with representatives of other agencies
when clients are mutually served such as the Individual
Habilitation Plan process.

Respondent's Appeal File, Exs. 3 and 6. See, also, Appellant's Appeal
File, Ex. 8.

As we concluded in the draft decision, these functions clearly fit
within the Dictionary's functional description of the "medical social
worker." Moreover, we find no difference between the case management
duties performed here and the general SPMP functional criterion of
"[a]ssessing, through case management activities, the necessity for and
adequacy of medical care and services required by individual
recipients," specifically stated in the preamble to the revised
regulations. In response to the draft decision, the Agency stated that
"it appears that the functions of this position . . . do use the medical
knowledge and skills that this employee (trained as a registered nurse)
brought to her position." Agency's Response to Draft Decision, p. 2.
Thus, we conclude that these are SPMP functions, and therefore, that
Position No. 00473 qualifies for 75% reimbursement. Draft Decision, p.
14.

2. Position Nos. 00735 and 00835

Both Position Nos. 00735 and 00835 worked in the child protective
services area. The State's affidavit (Ex. 8) states that in child
protective services the social worker functions are "to investigate
possible instances of neglect or abuse, assess problems that may
contribute to neglect, establish a case plan which includes deciding
which services will be given and by whom." The State's examples of
activities it believed qualified were: identification of alcohol or a
substance abuse, establishing a treatment plan which includes medical
treatment of a parent or child who abuses alcohol or drugs, arranging
for a physical examination, arranging transportation to medical
providers, identifying other health issues, such as nutritional problems
or psychological problems, and arranging for psychological testing and
counseling.

The position description and performance evaluation for Position No.
00735 describe the following kinds of functions:

o Accepts Child Protective Services Day Care cases which
involves assessment and some investigation into actual or
potential child abuse and neglect situations.

o Develops intervention plans, treatment plans, and ongoing
services to protect children and attempt to assist in keeping
families together.

o Assists clients in obtaining appropriate day care providers.

o Determines eligibility and maintains current list of
providers.

o Maintains contact with day care provider.

Respondent's Appeal File, Exs. 4 and 7.

The State employee's supervisor indicated that this employee's major
duties were in the area of child protective services. Specifically, if
child abuse were reported, which may have involved injuries to a child,
this worker was called upon to assist in the investigation because of
her nursing expertise. Appellant's Appeal File, Ex. 16.

The position description for Position No. 00835 describes the following
kinds of functions:

o Provides protective services to children which includes
intake referrals and crisis intervention.

o Initiates investigation.

o Evaluates data and identifies problem areas.

o Establishes treatment plans with clients.

o Counsels parents in the area of parenting skills.

o Prepares court documents.

o Provides foster care services to children.

o Identifies and participates in the development or improvement
of community resources.

o Prepares and maintains case records.

Respondent's Appeal File, Ex. 5.

By affidavit, the employee in this position during the period in dispute
confirmed that her "primary work was in the area of child protective
services." Appellant's Appeal File, Ex. 15. She indicated that on
almost a daily basis she would review the health related needs of
children, including those eligible for Medicaid. This included the
identification of medical problems, establishing a treatment plan
including medical treatment of children or their parents, and arranging
transportation to medical providers.

When compared against the Dictionary's functional definition of a
medical social worker and the regulation's general functional criteria
set forth in the preamble to the revised regulations, some of the
functions of these two positions may require the exercise of medical
judgment for the Medicaid program. While the majority of the duties of
these positions do not pertain to the Medicaid program, the Agency has
not argued that this factor is determinative of the functional status of
the particular functions actually performed for the Medicaid program.
We conclude that to the extent these social workers perform the duties
of a medical social worker, the State is entitled to 75% FFP.

The affidavit submitted by the State to evidence the functions performed
in the administration of the Medicaid program includes functions
concerning the identification of medical problems and establishment of
treatment plans that are consistent with the type of medical social
worker functions appropriately reimbursed at 75% FFP. Appellant's
Appeal File, Ex. 15. However, the record also shows that the positions'
duties included routine Medicaid administrative functions for which 75%
reimbursement is not available, such as, arranging transportation to
medical providers and making eligibility determinations. While the
record shows that only a small percentage (for example, 5%) of the
social workers' time was appropriately allocated to Medicaid, given the
nature of the positions' duties, that does not mean that all of the time
so allocated to Medicaid is properly reimbursed at the 75% SPMP rate as
opposed to the 50% rate generally available for administrative costs of
the Medicaid program.

Furthermore, the record does not show whether the State's random moment
time study used to allocate employees' time distinguished between the
duties of a medical social worker and other general Medicaid functions.
Without such a breakdown, there would be only a mere possibility that
either of these employees, during any given period of time, would
actually perform functions qualifying for 75% FFP. The Board has held
that where a State is claiming reimbursement of costs at a rate higher
than 50%, the State has the burden to show that the costs claimed are
entitled to the higher rate of reimbursement. Missouri Dept. of Social
Services, DAB No. 395 (1983), p. 6, and cases cited therein. Unless the
State can clearly show an entitlement to 75% FFP, then it qualifies only
for the 50% rate. The State may present on remand further information
concerning what portion of the time allocated to Medicaid for these
positions was actually related to qualifying SPMP duties.

In summary, we examined in this section the functions of the three
positions where the Agency agreed that the position incumbents met the
educational requirements as SPMP and the record contained information
concerning their functions. We found that Position No. 00473, working
with developmentally disabled adults and children, met the functional
requirement. Thus, 75% FFP is available for this position since both of
the applicable limitations at issue were met. We found that although
Position Nos. 00735 and 00835 would possibly perform some functions
qualifying for 75%, these positions also involved routine Medicaid
administrative functions. Thus, only 50% FFP is available for these
positions unless the State can clearly document how the little time
actually allocated to Medicaid should be split between the two rates.
See 42 C.F.R. 432.50(c)(1) and (2).

E. Conclusion and Remand for Further Consideration

For the foregoing reasons, we overturn the Agency's disallowance with
regard to Position No. 00473 and sustain the Agency's disallowance for
178 social worker and long-term care specialist positions. We remand
this matter back to the Agency for further determinations with regard to
26 social worker positions, as follows:

1. During the course of these proceedings, the parties agreed
to look further at the following positions: Position Nos.
00454, 00698, 00921, 00933, 00709, 00710, 00808, 00987, 00882
and 01615. With regard to four of these remanded positions,
where the Agency agreed the educational limitation was met
(Position Nos. 00921, 00933, 00454, and 00698), it is necessary
to examine on remand only the functional limitation.

2. In light of our conclusions above concerning the requisite
education and training necessary to qualify a medical social
worker as an SPMP, we remand to the Agency for further
consideration 14 positions in which the incumbents had Masters
degrees in social work according to Respondent's Exhibit 2. See
section IV.B.

3. For Position Nos. 00735 and 00835, the Agency need examine
on remand only whether the State can document the time spent on
qualifying SPMP functions, consistent with the Board's
conclusions in section IV.D. above.

The assumption underlying both parties' arguments was that the
documentation in the record, while related to a limited number of
positions, could be considered representative of all the positions'
duties. The record shows that the social workers worked either in the
child protective services area or with developmentally disabled children
and adults. Above, the Board considered whether the social worker
functions in these two areas qualified for SPMP status under the
functional limitation. Therefore, as a practical matter, the Agency can
use our discussion in section IV.D. in examining the functional status
of the remanded positions in categories 1., 2., and 3. above.

With regard to the three categories of remanded positions, the State has
30 days from receipt of this decision, or such additional time as the
Agency may allow, to document the educational as well as functional
requirements necessary to establish these positions as SPMP. However,
the State may choose not to pursue SPMP status for any position if not
warranted. Also, if the parties are unable to agree on the status of
any of the positions covered by the remand, the State may return to the
Board within 30 days after receiving HCFA's final determination on those
positions.

________________________________ Judith A. Ballard

________________________________ Norval D. (John) Settle

________________________________ Cecilia Sparks Ford Presiding
Board Member

AS/as&krk/SELZER4 DISK 3-13-89 88-23.dec